Oct. 24 to 30, 2013

Unapproved Opinions

New Jersey Law Journal




01-2-1761 In the Matter of the Appeal of Garabo From the Denial for New Jersey Firearms Purchasers I.D. Card and Permit to Carry a Handgun, App. Div. (per curiam) (8 pp.) Louis Garabo appeals from a Law Division order that upheld a decision by the Stafford Township chief of police to deny his application for a permit to purchase a handgun and a firearms purchaser identification card. The denial was based on the fact that Garabo’s son has a criminal conviction and the gun Garabo seeks to purchase will be secured within his residence, which is the same residence where his son resides. The appellate panel affirms; as the trial court recognized, “it’s within the public interest to prevent individuals with criminal convictions access to firearms.” [Decided Oct. 28, 2013.]


01-2-1762 In the Matter of Jetti, App. Div. (per curiam) (6 pp.) In this appeal of a commission decision denying reconsideration of its final determination enforcing a settlement with Essex County following Jetti’s appeal of his termination from his job as a corrections officer, the panel affirms, finding that his argument that the commission’s decision not to reconsider—based on its finding that the psychiatric report that he produced after the hearing indicating that he suffered from post-traumatic stress disorder and short-term memory loss and impaired judgment did not evaluate his competency when he entered into the agreement with the county and that there was no additional information not presented at the original hearing that would change the outcome—was arbitrary, capricious or unreasonable is without sufficient merit to require discussion in a written opinion. [Decided Oct. 28, 2013.]


46-2-1749 Acquaviva v. Elgen Manufacturing Inc., App. Div. (per curiam) (9 pp.) Acquaviva appeals from a final agency determination by the acting director of the New Jersey Division on Civil Rights finding no probable cause to substantiate her allegations that Elgen Manufacturing Inc. engaged in gender and creed harassment, hostile work environment, and retaliation in violation of the Law Against Discrimination. Acquaviva alleged that her supervisor harassed her because she was non-Jewish, designated her salesperson number as “sixty-nine” and displayed partially nude women calendars, and then terminated Acquaviva because she complained to management about the alleged harassment. Elgen disputed these allegations, argued that Acquaviva did not bring any harassment complaints to its attention, and contended that it terminated Acquaviva because she lacked product knowledge and computer proficiency. Acquaviva argues primarily that the division’s fact-finding conference was flawed because the investigator failed to interview an Elgen witness telephonically at the conference, chose not to interview Elgen customers, and conducted settlement discussions untimely; and because a tape recorder malfunctioned. As a result, Acquaviva contends that her due process rights have been violated. The appellate panel affirms, finding the division exercised its functions properly and afforded Acquaviva all the process to which she was due. [Decided Oct. 25, 2013.]

46-2-1750 Artis v. New Jersey Department of Corrections, App. Div. (per curiam) (5 pp.) Artis is civilly committed at the Special Treatment Unit (STU), pursuant to the New Jersey Sexually Violent Predators Act. The STU consists of a main facility and an annex. Artis appealed from the refusal by the Department of Corrections (DOC) to permit residents from the two buildings to attend church services and religious study classes together. On remand, the DOC issued a new policy, which allowed residents of both units to attend religious services and religious study classes together, in the same building. This policy further provided that the STU have separate holiday functions for the main building and annex, and permitted the STU to have two choirs—an annex choir for residents housed in the annex, and a main choir for residents housed in the main facility. Because the DOC has addressed the concerns, and Artis now seeks to advance further concerns about a joint choir that were not made clear in his administrative remedy form, the appellate panel affirms. It is unclear on the face of the administrative remedy form that a joint choir, or choir practice, was being sought, or the details thereof. Thus, the panel is unable to address Artis’ contention that joint choir practice should also be allowed. [Decided Oct. 25, 2013.]

46-3-1798 Martell’s Tiki Bar Inc. v. Governing Body of the Borough of Point Pleasant Beach, Law Div.—Ocean Co. (Grasso, A.J.S.C.) (17 pp.) Defendants borough of Point Pleasant Beach and members of its governing body move for summary judgment on plaintiff Martell’s Tiki Bar Inc.’s claims arising under the New Jersey Civil Rights Act, and other theories, seeking to invalidate a municipal ordinance that imposed restrictions and conditions on businesses with liquor licenses. Martell’s filed this case while an administrative appeal was pending before the Division of Alcoholic Beverage Control (ABC). The borough moved to dismiss pending the administrative board’s ruling. After the borough rescinded the challenged ordinance, the administrative board dismissed the appeal. At issue here is whether Martell’s claims are moot where the borough rescinded the ordinance before it took effect. The court finds that the borough’s stated intention to enact the ordinance did not constitute a threat, intimidation or coercion sufficient to warrant civil penalties under the Civil Rights Act. The court dismisses Martell’s claims for civil penalties under the Civil Rights Act as moot. The court also dismisses Martell’s remaining counts as moot, except that the court addresses Martell’s claim for attorney fees under the Civil Rights Act. The court accepts that Martell’s lawsuit caused the borough to rescind the ordinance. However, plaintiff failed to show that its lawsuit has an adequate basis in law. Martell’s fails to state a legally cognizable right protected by the Civil Rights Act. Martell’s argument that its liquor license constitutes a substantive right for Civil Rights Act purposes finds no support in law under the circumstances of this case. Also, because the ordinance never took effect, it cannot be found that the borough interfered with Martell’s right to do business. [Decided Oct. 27, 2013.]


15-2-1763 Atlantic Stewardship Bank v. Puddingstone Funding, L.L.C., App. Div. (per curiam) (15 pp.) Plaintiff’s business relationship with defendants began in May 2001 when it issued Puddingstone a commercial line of credit evidenced by a promissory note, which plaintiff extended a number of times before issuing a final promissory note on March 1, 2009. On Sept. 30, 2009, plaintiff filed its complaint seeking collection on the note that matured on July 1, 2009, and by its terms was due in full. Additionally, plaintiff claimed that defendants had defaulted on their loan obligations by failing to make two monthly payments and that Puddingstone’s members were liable for the full debt based on personal guarantees they had executed. Following a bench trial, the trial court entered an order for final judgment against defendants, jointly and severally, of $2,575,583.49. The appellate panel affirms, finding the judge did not err in declining to apply a “fair market value credit” to the amount of the judgment. The panel also rejects defendants’ contention that any credit should reflect values for their interests in real estate they assigned to plaintiff when the assignments were made, not when plaintiff declared defendants to be in default of their obligations. [Decided Oct. 28, 2013.]


15-2-1799 GMAC Inc. v. Fraser, App. Div. (per curiam) (4 pp.) In this appeal from an order directing defendant to show cause why an order should not be entered for the immediate disclosure of the location of a car he had leased after he had defaulted on his obligations under the lease, i.e., to either return the car at the expiration of the lease or exercise a purchase option, immediate surrender of the car, issuance of a writ of replevin, and such other relief as the court deems equitable, the panel affirms. It finds that because defendant does not dispute the terms of the lease, does not claim any fraud in connection with the lease agreement, and acknowledged that he did not have the funds to exercise the purchase option, his argument that the car was an integral part of a pending federal suit against GMAC alleging that it committed fraud in connection with the refinancing of defendant’s home and thus deprived him of the funds necessary to purchase the car, and thus that the court violated his Fifth Amendment right by issuing the OTSC before disposition of the federal action, is without merit. [Decided Oct. 30, 2013.]


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